AG Seeking Governor’s Office Walks Fine Line

JEFFERSON CITY, Mo. (CN) - In intervening in a same-sex marriage lawsuit, Missouri Attorney General Chris Koster continues to walk a fine line as he seeks the governor's office.

At issue is a lawsuit filed by the American Civil Liberties Union this summer in Jackson County Court on behalf of two same-sex Missouri couples who were denied a marriage license.

Missouri voters in 2004 adopted a state constitutional amendment defining marriage as between a man and a woman.

Missouri was not named as a defendant, but Koster intervened because the lawsuit claims the 2004 amendment violates the equal protection and due process clauses of the U.S. Constitution. Koster's intervention moved the lawsuit to Federal Court.

The lawsuit was one of several being litigated at the state level.

In a separate lawsuit, the ACLU represents 10 same-sex couple who were legally married in other states who want their marriage recognized in Missouri.

"We wanted at least one of the cases (from Missouri) to be considered in a court of broader jurisdiction," Koster spokesman Eric Slusher told The Associated Press.

The move to the federal courts puts the suit on a more direct path to the federal appellate courts, where judges have been striking down same-sex marriage bans.

The hot button same-sex marriage issue has had Koster walking an ethical and political tightrope.

Koster is the leading Democratic candidate to replace fellow Democrat Jay Nixon as governor in 2016. As attorney general, Koster - a Republican turned Democrat - has been put in the position of defending an amendment he doesn't personally believe in.

The position was highlighted after the City of St. Louis issued marriage licenses to several same-sex couples in June. The move forced Koster's office to file for an injunction against the marriage licenses in City Court.

In intervening in this case, Koster may have found the best of both worlds.

Since the lawsuit claims the amendment is unconstitutional, Koster is able to intervene as attorney general to remove it to a federal court, where federal appellate judges have repeatedly struck down same-sex bans.

Koster has repeatedly said he personally supports same-sex marriage, but will fulfill his duty as attorney general by upholding and defending the state's ban.

True to his word, Koster's office filed documents in Federal Court last week arguing that Missouri's prohibition should be upheld because states have a right to set their own rational constraints on domestic relations until the U.S. Supreme Court says otherwise.

Tony Rothert, legal director of the ACLU of Missouri, said the state's request to have the case removed to federal court rather than keep it on the state level is unusual, but Rothert declined to speculate on the rationale for the move.

"We were happy to have the state intervene so that now any decision applies across the state and not just to that particular Recorder of Deeds office," Rothert told Courthouse News.

Law and momentum could be on the ACLU's side. Last year, the U.S. Supreme Court ordered the federal government to recognized same-sex marriages and now 19 states plus the District of Columbia recognize such marriages.

"From our perspective, it doesn't matter if it is in state or federal court," Rothert said. "We're likely to win in either court."

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